Sanjay Bhivgade vs State Of Chhattisgarh
2021 Latest Caselaw 3359 Chatt

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                                                                        AFR
           HIGH COURT OF CHHATTISGARH, BILASPUR

                         CRMP No. 385 of 2021

                        Reserved on : 01.10.2021

                        Delivered on : 30.11.2021

1.    Sanjay Bhivgade, S/o Late Vivekanand Bhivgade, Aged About
      53 Years.
2.    Manoj Bhivgade, S/o Late Vivekanand Bhivgade, Aged About 52
      Years.
      Both above R/o Link Road, Bilaspur, Tehsil & District- Bilaspur
      (C.G.)
                                                             ---- Petitioners
                                    Versus
1.    State of Chhattisgarh, through Station House Officer, Police
      Station Civil Lines, Bilaspur, District- Bilaspur (C.G.)
2.    Meenakshi Banjari, W/o Aniruddh Banjari, Aged About 59 Years,
      R/o Sai Vihar, House No. 19 No. 5, Yadunandan Nagar, Tifra
      Tahsil & District- Bilaspur (C.G.)
                                                         ---- Respondents

For Petitioners : Mr. Manoj Paranjpe, Advocate along with Mr. Bharat Sharma, Advocate.

For State/ Res. No. 1 : Mr. Devendra Pratap Singh, Dy. A.G. For Respondent No. 2 : Mr. Ajay Kumar Dwivedi, Advocate.

Hon'ble Shri Justice Narendra Kumar Vyas

C.A.V. ORDER

1. The petitioners have filed this petition under Section 482 of the Cr.P.C. against the order dated 02.03.2021 (Annexure P/1) passed by Judicial Magistrate First Class, Bilaspur, District- Bilaspur (C.G.) in Criminal Complaint Case No. unregistered/2020 whereby the application filed by respondent No. 2-Meenakshi Banjari under Section 156 (3) of the Cr.P.C. has been allowed directing Police Station- Civil Lines, Bilaspur to register FIR against the petitioners and to submit final report.

2. The brief facts as projected by the petitioners, are that there is a

dispute with respect to the property bearing Khasra No. 635/3 & 638/59 area admeasuring 0.25 & 0.95 total 1.20 acres situated at Juna Bilaspur, District- Bilaspur going on between the petitioners and respondent No. 2. Even the civil suit was also filed and in that said civil suit, the counter claim filed by the petitioners was decreed vide judgment and decree dated 25.02.2012 and the Civil Court has recorded categorical finding that will executed by Satyabhama dated 31.01.2001 is a valid document and the petitioners have proved the genuineness of the said will.

3. Learned counsel for the petitioners would submit that in pursuance of the will dated 31.01.2001 executed in favour of the petitioners, names of the petitioners were recorded on 02.01.2003. On 07.03.2009, application filed by the complainant under Section 32 of the Land Revenue Code before Tahsildar, Bilaspur was allowed and the order of mutation passed in favour of the petitioners has been set aside. On 06.08.2009, one Sangh Mitra and three others filed Civil Suit bearing No. 3A/2011 challenging the will executed by Sangh Mitra, the complainant- Meenakshi Banjari was defendant No. 1 and petitioners were impleaded as defendants No. 3 & 4. The petitioners also filed the counter claim, claiming the title over the property in question on the basis of will. On 10.03.2010, Sub Divisional Officer allowed the appeal preferred by the petitioners under Section 44 of the Land Revenue Code and set aside the order of Tahsildar. On 25.02.2012, Civil Suit No. 3A/2011 was dismissed the suit and decreed the counter claim of defendant No. 3 & 4 holding the will dated 31.01.2001 as genuine document, since then, the petitioners are in possession of the property. On 26.02.2013, the second appeal preferred by the complainant under Section 44 (2) of the Land Revenue Code was allowed and the order passed by the Sub-Divisional Officer was set aside by the Commissioner. On 29.03.2017, the revision preferred by the petitioners against order of Commissioner has

been allowed and the order of Commissioner has been set aside. On 20.03.2018, Writ Petition (C) No. 963/2018 filed by the complainant is pending before this Court for consideration.

4. Thereafter, on 30.04.2018, respondent No. 2 filed a complaint (Annexure P/2) before Judicial Magistrate First Class, Bilaspur, which reads as under:-

"1- ;g fd Hkwfe fLFkr twuk fcykliqj i-g-ua-&22 jk-fu-ea- fcykliqj rglhy o ftyk fcykliqj esa fLFkr Hkwfe [kljk uacj [email protected] ,oa [email protected] jdck dze'k% 0-25 ,oa 0-95 dqy 1-20 ,dM+ Hkwfe fof/kor rjhds ls U;k;ky;hu vkns'kkuqlkj izdj.k dzekad [email protected]&[email protected] fnukad [email protected]@2009 ds vuqlkj ifjokfnuh ds uke ij ntZ fd;k x;k rFkk rglhynkj ds mDr vkns'k dks laHkkxk;qDr fcykliqj us vihy izdj.k dzekad [email protected]&[email protected]&11 fnukad [email protected]@13 ds vuqlkj fLFkj j[kk x;k gSA 2- ;g fd vk;qDr ds mDr vkns'k ds fo:) vfHk;qDrx.k lat; fHkoxM+s ,oa eukst fHkoxM+s us jktLo e.My esa vihy izLrqr fd;k rFkk vihy esa Lo;a dks vuqifLFkr dj ekeyk [kkfjr djk fy;k rFkk rRi'pkr iqu% ekeys dks lkft'k ds vuqlkj iquZLFkkfir djkdj ifjokfnuh ds }kjk vf/koDrk fu;qDr u fd;s tkus ij Hkh fdlh dfFkr vf/koDrk dks [kM+k djkdj rFkk ckn esa mDr vf/koDrk dks vuqifLFkr djkdj ,di{kh; vkns'k voS/k] fof/k foijhr o 'kwU; rjhds ls ikfjr djok;k x;k gS ftlds fo:) eSa ekuuh; mPp U;k;ky; esa dkuwuh dk;Zokgh dj jgh gSA 3- ;g fd ifjokfnuh dk irk foxr 08 o"kksZa ls lakbZ fogkj edku uacj 19 okMZ uacj 05 ;nquanu uxj frQjk fcykliqj N-x- gS] fdarq mlds ckn Hkh ifjokfnuh dks xyr irs ij vFkkZr dqEgkjikjk fcykliqj N-x- ftlesa dksbZ Hkh vklikl dk irk ugh gS mDr QthZ irs ij uksfVlh rkehy u gksus ij Hkh uksfVl rkehy gS crkdj dk;Zokgh QthZ rjhds ls vfHk;qDr eukst fHkoxM+s ,oa lat; fHkoxM+s us djok;k gS tks ljklj vU;k; ,oa Ny diV] /kks[kk/kM+h gksdj vkijkf/kd d`R; gSA 4- ;g fd ifjokfnuh ds ifr vfu:) catkjh ftuls ifjokfnuh dk laca/k fiNys Ms<+ o"kksZa ls [kjkc gS rFkk ifjokfnuh dks NksM+dj tk pqds gS rFkk mUgksusa ifjokfnuh dks viuk odhy ,oa ifr gksus dk fo'okl fnykdj ifjokfnuh ls dqN dkxtksa ij gLrk{kj fy;k FkkA ftldk mi;ksx dwVjpuk dj QthZ fy[kk i<+h cukus ds fy;s fd;k tk jgk gS tks fd vkijkf/kd d`R; gSA 5- ;g fd ifjokfnuh dks ,slh tkudkjh feyh gS fd ekuuh; rglhynkj egksn; ds U;k;ky; esa ifjokfnuh }kjk odkyrukek u fn;s tkus ds ckn Hkh ifjokfnuh ds gLrk{kj dh dwVjpuk dj gLrk{kj cukdj vkijkf/kd dk;Z djrs gq;s ifjokfnuh dh vksj ls izdj.k esa mifLFkfr ntZ djkbZ xbZ gS

euuh; rglhynkj ds U;k;ky; esa lh-lh-Vh-oh- dSejk yxk gqvk gS eSa ifjokfnuh rglhynkj ds U;k;ky; dHkh ugha xbZ gS vkSj u gh ifjokfnuh us odkyrukek esa ifjokfnuh dk gLrk{kj gS fdarq mlds ckn Hkh ifjokfnuh ds gLrk{kj dh dwVjpuk dj dk;Zokgh dh xbZ gS ftldk ykHk lat; fHkoxM+s ,oa eukst fHkoxM+s dks izkIr gqvk gS mDr laca/k esa ,Q-vkbZ- vkj- ntZ djkdj dkuwuh dk;Zokgh djus ds fy;s ifjokfnuh us ekuuh; iqfyl egkfujh{kd egksn; fcykliqj] ekuuh; iqfyl v/kh{kd fcykliqj ,oa Fkkuk izHkkjh flfoy ykbZu fcykliqj dks izLrqr dh gwa fdarq dksbZ dk;Zokgh u gksus ij U;k; ikus ds fy;s ;g ifjokn i= U;k;ky; esa izLrqr dj jgh gwaA 6- ;g fd esjk gLrk{kj dh dwVjpuk dj esjs dwVjfpr gLrk{kj ;qDr odkyrukek dk nq:i;ksx dj voS/k dk;Zokgh dh xbZ gS tks /kkjk 420] 467] 468] 471] 472 Hkk-na-fo- dk vkijkf/kd d`R; gSA 7- ;g fd rglhynkj fcykliqj ds U;k;ky; esa ifjokfnuh dk dwVjfpr gLrk{kj ;qDr odkyrukek yxk;k x;k gS ftlesa ifjokfnuh ds vf/koDrk dk uke jk/ks'k dqekj ';ke fy[kk x;k gS tcfd mDr uke dk dkbZ vf/koDrk izkIr tkudkjh ds vuqlkj gS gh ugha bl izdkj vfLrRoghu vf/koDrk dk uke Mkydj dk;Zokgh xbZ gS tks fd /kkjk 420] 467] 468] 471] 472 Hkk-na-fo- ds varxZr n.Muh; vijk/k gSA rglhynkj fcykliqj dks Hkh mDr lanHkZ esa dk;Zokgh djus gsrq fy[kk x;k mudh vksj ls dkbZ izFke lwpuk i= ntZ u djkus ds dkj.k U;k; ikus ds fy, ;g ifjokn i= izLrqr fd;k tk jgk gSA 8- ;g fd ifjokn i= ds leFkZu esa ifjokfnuh dk 'kiFk i= layXu gSA vr% ekuuh; U;k;ky; ls izkFkZuk gS fd vfHk;qDrx.kkas ds fo:) /kkjk 420] 468] 467] 471] 472 Hkk-na-fo- ds varxZr [email protected] lwpuk i= ntZ dj vfHk;qDrx.kksa dks mDr fo/kku esa of.kZr dkjkokl ls ,oa vFkZn.M ls nf.Mr fd;s tkus dk n.Mkns'k ikfjr djus dh d`ik gSA"

5. Learned counsel for the petitioners have also annexed copy of order-sheets of Criminal Complaint Case No. unregistered/2020 (Meenakshi Banjari Vs. Sanjay Bhivgade) which would reflect that the complainant has filed complaint under Sections 200 & 202 of the Cr.P.C. on 30.04.2018. The learned Judicial Magistrate First Class fixed the case for consideration on 05.05.2018 and the proceedings were adjourned upto 11.09.2018. On that date, the learned Judicial Magistrate First Class fixed the case on 12.10.2018, thereafter, the proceedings were adjourned upto 26.11.2019 for consideration. On

26.11.2019, the learned Judicial Magistrate First Class has observed that the Police Station- Civil Lines, Bilaspur has sought time to submit the enquiry report and fixed the case on 07.12.2019 for consideration and for submission of report. On the said date, though in order-sheet it has been reflected that enquiry report has been submitted but on subsequent date on 08.01.2020, it has been mentioned that the report has not been submitted. Learned Judicial Magistrate First Class has fixed the case for primary evidence on 16.01.2019 and the case was taken up on 09.01.2020, wherein, it has been mentioned that the report from Police Station- Civil Lines has been received and fixed the case on 16.01.2020 for primary evidence of the complainant. Thereafter, the case was fixed on 23.01.2020, which was adjourned to 30.01.2020 and again on 10.02.2020. On 10.02.2020, the learned counsel for the complainant has submitted an application under Section 156 (3) of the Cr.P.C. for submission of final report. The learned Judicial Magistrate First Class fixed the case for argument on the application on application filed under Section 156 (3) of the Cr.P.C. which was adjourned upto 12.05.2020 and thereafter, the case was taken up on 23.12.2020 and thereafter the case was adjourned upto 19.02.2021. Learned Judicial Magistrate First Class heard the arguments on the application filed under Section 156 (3) of the Cr.P.C. and thereafter fixed the case on 20.03.2021 for orders on the application filed under Section 156 (3) of the Cr.P.C.

6. Learned counsel for the petitioners would further submit that the petitioners moved an application under Section 156 (3) of the Cr.P.C. (Annexure P/4) for directing the concerned police station to submit final report and the proceedings were adjourned on this application upto 19.03.2020. The contents of the application under Section 156 (3) of the Cr.P.C. are as under:-

"10- ;g fd ekuuh; U;k;ky; ds vkns'kkuqlkj Fkkuk flfoy ykbZu fcykliqj ds }kjk takp dh xbZ rFkk mDr gsrq flfoy ykbZu fcykliqj ds }kjk tkudkjh ,oa nLrkost izkIr fd;s x;s rFkk flfoy ykbZu ds }kjk rglhynkj ds U;k;ky; esa

izLrqr ifjokfnuh ds odkyrukek ds lanHkZ esa takp dh xbZ ftl ij ls Fkkuk flfoy ykbZu fcykliqj dks ftyk vf/koDrk la?k fcykliqj esa ;g fyf[kr tkudkjh nh fd dfFkr jk/ks'k flag ';ke ds uke dk dksbZ Hkh vf/koDrk ftyk vf/koDrk la?k fcykliqj esa iath;u ugha gSA bl izdkj ftl vf/koDrk dk odkyrukek ifjokfnuh dh vksj ls izLrqr djuk crk;k x;k mDr uke dk dksbZ vf/koDrk vfLrRo eesa ugh gSA bl izdkj ifjokfnuh ds gLrk{kj dh dwVjpuk dj izfrokfnuh dh vksj ls ,sls odhy dk odkyrukek yxok ftldk dksbZ vfLrRo ugha gS voS/k ykHk vkijkf/kd rjhds ls izkIr fd;k x;k rFkk Hkwfe dks vius uke ntZ djokus dh dk;Zokgh dj nh xbZ igys ifjokfnuh dks jktLo e.My fcykliqj esa vuqifLFkr djok fn;k rFkk ckn esa jktLo e.My ds vkns'k dk irk u yxs rFkk voS/k jktLo vfHkys[kksa esa izfof"V gks tkosa mDr gsrq ifjokfnuh dk QthZ odkyrukek yxokdj dk;Zokgh fd;k x;k ;gak ;g myysf[kr fd;k tkuk vko';d gS fd jktLo e.My ls Hkh Fkkuk flfoy ykbZu ds }kjk fyf[kr esa tkudkjh yh xbZ ftl ij dk;kZy; jktLo e.My us ;g voxr djk;k fd jktLo e.My ds izdj.k esa ifjokfnuh dks rkehy djkbZ xbZ uksfVl ds laca/k esa nLrkost ugha gS] rFkk mDr lHkh voS/k dk;Zokfg;ksa dk ykHk vfHk;qDrksa dks izkIr gqvk gS ftlds ifjizs{; esa muds fo:) izFke lwpuk i= ntZ dj dkuwuh dk;Zokgh fd;k tkuk vko';d gS bl izdkj vfLrRoghu odhy dk odkyrukek yxokdj QthZ rjhds ls voS/k dk;Zokgh fof/k foijhr rjhds ls dh xbZ gS tks fd /kkjk 420] 468] 467] 471] 472 Hkk-na-fo- ds varxZr n.Muh; vijk/k gSA 11- ;g fd Fkkuk flfoy ykbZu ds }kjk fn;s x;s izfrosnu esa odkyrukek dks lafnX/k ik;k x;k gS bl izdkj dgh u dgh izFke n`"V;k vijk/k gksuk Fkkuk flfoy ykbZu us ik;k gS rFkk bl izdkj ds nkf.Md izdj.k esa izFke lwpuk i= ntZ fd;s fcuk rFkk Lora= takp fd;s fcuk okLrfod rF; lkeus u vk ikosxk mDr dkj.k rFkk izFke lwpuk i= ntZ fd;s fcuk takp oS/kkfud :i ls u dh tk ldsxh mDr dkj.k ls Fkkuk flfoy ykbZu dks /kkjk 156 ¼3½ n-iz-la- ds izko/kkuksa ds vuqlkj izFke lwpuk i= ntZ dj vafre izfrosnu izLrqr fd;s tkus dk funsZ'k fn;k tkuk vko';d gSA vr% ekuuh; U;k;ky; ls izkFkZuk gS fd vfHk;qDrx.kksa ds fo:) 156 ¼3½ n-iz-la- ds varxZr vfHk;qDrx.kksa ds fo:) 420] 468] 467] 471] [email protected] Hkk-na-fo- ds varxZr [email protected] lwpuk i= ntZ dj vafre izfrosnu izLrqr djus dk funsZ'k Fkkuk flfoy ykbZu dks fn;s tkus dh d`ik gks U;k;fgr esa vkosnu i= Lohdkj gksA"

7. Learned counsel for the petitioners would further submit that the learned Judicial Magistrate First Class has allowed the application filed by the complainant under Section 156 (3) of the

Cr.P.C. on 02.03.2021 (Annexure P/1) and directed Police Station- Civil Lines, Bilaspur to register FIR and after investigation, final report has been submitted. The operative part of the order is extracted below:-

"ifjoknh }kjk vfHk;qDrx.k ds fo:) /kkjk 420] 468] 467] 471] 472 Hkknla- ds varxZr vijk/k iathc) djus gsrq ifjokn izLrqr fd;k x;k gSA ifjoknh }kjk ;g dFku fd;k x;k gS fd twuk fcykliqj Hkwfe fLFkr igua- 22 jkfuea- fcykliqj rglhy o ftyk fcykliqj esa fLFkr Hkwfe [kljk uacj [email protected] ,oa [email protected] jdck dze'k% 0-25 ,oa 0-95 dqy 1-20 ,dM+ Hkwfe fof/kor rjhds ls U;k;ky;hu vkns'kkuqlkj izdj.k dzekad [email protected]&[email protected] fnukad 7-5-2009 ds vuqlkj ifjokfnuh ds uke ij ntZ fd;k x;k rFkk rglhynkj ds mDr vkns'k dks laHkkxk;qDr fcykliqj us vihy izdj.k dzekad [email protected]&[email protected]&11 fnukad 26-02- 2013 ds vuqlkj fLFkj j[kk x;k gSA vk;qDr ds mDr vkns'k ds fo:) vfHk;qDrx.k lat; fHkoxM+s ,oa eukst fHkoxM+s us jktLo e.My esa vihy izLrqr fd;k rFkk vihy esa Lo;a dks vuqifLFkr dj ekeyk [kkfjt djk fy;k rFkk rRi'pkr~ iqu% ekeys dks lkft'k ds vuqlkj iquZlFkkfir djkdj ifjokfnuh ds }kjk vf/koDrk fu;qDr u fd;s tkus ij Hkh fdlh dfFkr vf/koDrk dks [kM+k djkdj rFkk ckn esa mDr vf/koDrk dks vuqifLFkr djkdj ,di{kh; vkns'k voS/k] fof/k foijhr o 'kwU; rjhds ls ikfjr djok;k x;k gS ftlds fo:) ifjoknh ekuuh; mPp U;k;ky; esa dkuwuh dk;Zokgh dj jgh gSA rRlaca/k esa Fkkuk flfoy ykbZu ls takp izfrosnu vkgwr djk;k x;k Fkk Fkkuk flfoy ykbZu }kjk dh xbZ tkap ls ;g nf'kZr gS fd Fkkuk flfoy ykbZu }kjk takp izdj.k dzekad vkj-,[email protected]@[email protected] esa [email protected] rkfeyh ds laca/k esa tkudkjh eaxk;h x;h ftlds laca/k esa vij lfpo jktLo eaMy ds }kjk Kkiu dzekad 446 fnukad 26- 12-2019 ds vuqlkj tkudkjh iznku dh x;h fd mDr izdj.k esa uksfVl dh [email protected] rkfeyh layXu ugh gSA Fkkuk flfoy ykbZu ds }kjk rglhynkj ds U;k;ky; esa izLrqr ifjokfnuh ds odkyrukek ds lanHkZ esa takp dh xbZ ftl ij ls Fkkuk flfoy ykbZu fcykliqj dks ftyk vf/koDrk la?k fcykliqj esa ;g fyf[kr tkudkjh nh fd dfFkr jk/ks'k flag ';ke ds uke ij dksb Hkh vf/koDrk ftyk vf/koDrk la?k fcykliqj esa iath;u ugh gSA vr% izdj.k esa voyksdu ls ,oa Fkkuk flfoy ykbZu }kjk dh x;h izkjafHkd takp ls ;g Li"V gS fd izFke n`"V;k vfHk;qDrx.k }kjk ifjokfnuh dk QthZ odkyrukek yxokdj dk;Zokgh dh x;h gS vr% vfHk;qDrx.k ds fo:) izFke lwpuk fjiksVZ ntZ fd, tkus ds i;kZIr vk/kkj nf'kZr gSA vr% Fkkuk izHkkjh flfoy ykbZu dks funsZf'kr fd;k tkrk gS fd izdj.k esa vkosfndk ds vkosnu i= ds vuqlkj

vukosndx.k ds fo:) izFke lwpuk fjiksVZ ntZ dj foospuk mijkar vafre izfrosnu izLrqr djsA"

8. The petitioners being aggrieved with this order preferred the instant petition under Section 482 of the Cr.P.C. and would submit that once the Magistrate has fixed the case for recording the evidence and initiated the proceedings under Chapter XV of the Cr.P.C., the Magistrate ought to have rejected the prayer for filing of an application under Section 156 (3) of the Cr.P.C. He would further submit that the Magistrate having fixed the matter for recording the evidence of complainant's witnesses to examine as to whether process needs to be issued to other party or not, he can later on, invoke powers under Section 156 (3) of Cr.P.C. and chooses different nature of enquiry/ investigation before issuing the process. He would further submit that the learned Magistrate is not justified in invoking power and jurisdiction under Section 156 (3) of the Cr.P.C. and in directing registration of FIR and investigation after taking cognizance of the complaint. Hence, it is prayed that the order for registration of FIR against the petitioners is liable to be quashed.

9. In support of his contention, learned counsel for the petitioners placed reliance upon the judgment rendered by this Court in Indresh Sharma & another Vs. Smt. Heera Bai & another 1, wherein this Court has held as under:-

"The Magistrate having fixed matter for recording evidence of complainant's witnesses to examine as to whether precess needs to be issued to other party, cannot later on, invoke said powers and choose different nature of enquiry/ investigation before issuing the process."

10. He would also refer to the judgment passed by Hon'ble the Supreme Court in Anju Chaudhary Vs. State of Uttar Pradesh & another2, Amarnath Agrawal Vs. Jai Singh Agrawal & others3, Naresh Swamy Vs. State of Chhattisgarh & others 4,

2015 SCC Online Chh 15

(2013) 6 SCC 384

(2015) 1 High Court Cases (Chh) 40

WPCR No. 50/2016 (Decided on 11.02.2021)

Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra & others5 & Bholaram Yadav & others Vs. State of Chhattisgarh & others6. He would further submit that it is well settled that while exercising the powers under conferred under Section 156 (3) of the Cr.P.C., the Magistrate cannot enter into the arena of merits and cannot pass the detailed order. He would further submit that the Magistrate ought not to have exercised or invoked powers under Section 156 (3) of the Cr.P.C. The order-sheet of the Board of Revenue itself shows that the husband of the complainant was appearing before the Board of Revenue and he was contesting the matter on behalf of the complainant and the complainant was also aware in respect of the proceedings. There is no material to show that the petitioners by making forged signature of the complainant have engaged the lawyer. Merely because the order was passed in favour of the petitioners before the Board of Revenue itself will not lead to a presumption that they have committed any offence.

11. He would further submit that in the writ petition filed by the complainant there is no whisper or allegation as alleged in the complaint filed under Section 200 of the Cr.P.C. or in the application filed under Section 156 (3) of Cr.P.C. and all of a sudden when the petitioners could not get any relief from this Court in Writ Petition (C) No. 963/2018, the complaint has been filed, therefore, the allegation levelled against the petitioners is hypothetical and on the basis of hypothetical allegations, complaint is not maintainable. Hence, it is prayed that the instant petition may kindly be allowed and the order dated 02.03.2021 (Annexure P/1) passed by learned Judicial Magistrate First Class, Bilaspur may kindly be quashed.

12. This Court while hearing this petition on 17.05.2021 directed that no coercive steps shall be taken till the next date of hearing.

13. Learned State counsel has filed their return, in which, it has been stated that on the basis of preliminary enquiry report

AIR 2021 SC 1918/ 2021 SCC Online SC 315

WPCR No. 194/2021 (order dated 17.03.2021)

submitted by Police Station- Civil Lines, Bilaspur, learned Court below took cognizance regarding commission of forgery by the accused persons by way of submitting Vakalatnama for the applicant and contested the case before the Revenue Board, Bilaspur in Revenue Case No. RN/02/R/210/2013. Learned Court below found prima facie offence against the petitioners and directed Police Station- Civil Lines, Bilaspur to register an FIR against the petitioners. Looking to the seriousness of the allegations against the petitioners, the matter has to be investigated by the investigating agency, therefore, in view of the above, the instant petition is premature and the same is liable to be dismissed.

14. He would further submit that the enquiry report was sought from Police Station- Civil Lines, Bilaspur, which was submitted on 09.01.2020 and thereafter, the matter was fixed for further hearing. The further proceedings continued till 10.02.2020 on the same position as that of 09.01.2020. On 10.02.2020, the complainant filed an application under Section 156 (3) of the Cr.P.C. for registration of FIR against the accused persons. The further proceedings continued for argument on the application moved by the complainant and finally on 02.03.2021, the learned trial Court passed final order directing the concerned Police Station to register an FIR against the accused person. Thus, it can be seen that the learned Court below carried the proceeding and passed the order only under Section 153 (6) of the Cr.P.C. confining itself under the provisions of Chapter XII of the Cr.P.C. In that view of the matter, the legal issue raised by the petitioners sans merits, therefore, the petition filed by the petitioners is liable to be dismissed on its own merit.

15. He would further submit that as per order dated 02.03.2021 passed by learned Judicial Magistrate First Class, Bilaspur, FIR No. 497/2021 (Annexure R/1-1) has already been registered against the petitioners at Police Station- Civil Lines, Bilaspur on 15.05.2021 for committing offence punishable under Sections

420 & 34 of IPC and in compliance of this Court's order dated 17.05.2021, investigation proceedings in the matter has been stopped.

16. He would further submit that in M/s Neeharika (Supra), Hon'ble the Supreme Court has issued the guidelines with regard to maintainability of the petition under Section 482 of the Cr.P.C. He would further submit that in State of Haryana Vs. Bhajanlal7, the proceedings relating to cognizable offences cannot be interfered except on certain grounds enumerated by the Apex Court in the said judgment. It is evident that none of the grounds mentioned by the Hon'ble Supreme Court in the said judgment are attracted in the present case. He would further submit that in State of Telangana Vs. Habib Abdullah Jeelani & others8, Hon'ble the Supreme Court has held that if the information given clearly mentions the commission of cognizable offence, there is no other option but to register an FIR forthwith. Other consideration are not relevant at the stage of registration of FIR. Hence, it is prayed that the instant petition is devoid of merits and is liable to be dismissed.

17. Learned counsel for respondent No. 2 has filed return mainly contending that there is sufficient material available in the complaint as well as in the police report, therefore, at this initial stage, quashing the FIR by using inherent powers under Section 482 of the Cr.P.C. will lead injustice. The inherent powers should not be exercised to stifle a legitimate prosecution, therefore, the petition filed under Section 482 of the Cr.P.C. is not maintainable. He would further submit that in Civil Suit No. 03A/2011, other defendants have become ex-parte and only the petitioners contested the civil suit. It is further submitted that on the basis of illegal and false document of service of summon to respondent No. 2 and producing forged Vakalatnama on her behalf and even without sign of any of advocate in Vakalatnama, the petitioners got ex-parte proceedings done against

AIR 1992 SC 604

(2017) 2 SCC 779

respondent No. 2. Thus, the petitioners have been accustomed to misusing and abusing the process of law from very beginning and getting orders in their favour by playing fraud. So far as Vakalatnama dated 12.11.2009 is concerned, it contains signature of no advocate and even on the following dates, no advocate signed on behalf of respondent No. 2 and finally on 25.03.2010, an exparte decree was passed against respondent No. 2.

18. He would further submit that after coming to know the fact that respondent No. 2 made written complaint before Inspector General of Police, Superintendent of Police, Bilaspur and to Incharge Police Station- Civil Lines, Bilaspur, but no action was taken against the petitioners, therefore, respondent No. 2 filed a complaint before Judicial Magistrate First Class, Bilaspur, who in turn sent the same along with the documents to Police Station- Civil Lines, Bilaspur for investigation and for submission of report. During investigation, Police Station- Civil Lines enquired from District Bar Association Bilaspur with regard to the advocate namely Radhes Kumar Shyam. District Bar Association Bilaspur informed the police that the name of Radhes Kumar Shyam is not enrolled in the enrollment register. Thereafter, Police Station- Civil Lines also enquired from office of Revenue Court, Bilaspur about service of notice to respondent No. 2. Office of Revenue Court, Bilaspur informed that no service report is available in the record to show the service to respondent No. 2. Police Station- Civil Lines, Bilaspur submitted its report before Judicial Magistrate First Class, Bilaspur. Thereafter, the complainant filed application under Section 156 (3) of the Cr.P.C. before learned Judicial Magistrate First Class, Bilaspur, who after going through the report directed Police Station- Civil Lines, Bilaspur to register FIR against the petitioners and for further investigation. He has also annexed copy of the report (Annexure R/2-3). The operative part of the report is extracted below:-

"........bl izdkj mDr izdj.k esa ifjokfnuh ehuk{kh catkjh dks lwpuk i= u Hkstk Li"V gksrk gS lkFk gh rglhynkj fcykliqj ds le{k izLrqr fd;s x;s odkyr ukek fnukad 13- 11-17 dk odkyr ukek esa ftl vf/koDrk jk/ks'k dqekj ';ke dk odkyr ukek is'k djuk crk;k x;k ifjoknh ds }kjk crk;k x;k gS fd mDr odkyr ukek ij fdlh Hkh izdkj dk gLrk{kj ugh djuk crkbZ gSA mDr laca/k esa ftyk vf/koDrk la?k fcykliqj N-x- ls mDr vf/koDrk jk/ks'k dqekj ';ke uked vf/koDrk ds :i esa iath;u gksus ds laca/k esa tkudkjh eakxh xbZ ftl ij ftyk vf/koDrk la?k fcykliqj ds i= dza [email protected]@2019 fnukad 7-12-19 ds ek/;e ls ;g tkudkjh iznku fd xbZ fd jk/ks'k dqekj ';ke uked O;fDr ds uke ftyk vf/koDrk la?k esa iathd`r lnL; ugh gSA bl rjg ls izdj.k esa izLrqr odkyrukek lansgkLin izrhr gksrk gSA "

19. Learned counsel for the petitioners has filed rejoinder and would submit that the civil suit in respect of the suit property was instituted and vide Annexure P/6, the Civil Court on 25.02.2012 (Annexure P/6) decreed the counter claim of the petitioners and the said judgment and decree has attained its finality even after knowing the said judgment and decree of the trial Court the complainant did not file any appeal or made any application for setting aside the said judgment and decree. The judgment and decree passed by the competent court will remain in force till it is set aside competent trial forum. He would further submit with respect to the allegations pertained to the forgery of the Vakalatnama or alleged fraud is concerned that order-sheet of the Court of Tahsildar (Annexure P/8) itself shows that the complainant was presented by the lawyer and the lawyer is no other than the husband of the complainant. The Vakalatnama filed by the Anirudh Banjare at Page 11 of the application for taking documents itself shows the factual position. The writ petition challenging order of the Board of Revenue is still pending consideration and the allegations levelled against the petitioners have no substance and are not correct and denied herewith. All the allegations made in the return are baseless, incorrect and denied herewith the complaint is nothing but an abuse of process of law.

20. He would further submit in respect of the ground of alternative remedy alleged to be available to the petitioners to challenge the order of Judicial Magistrate First Class that as per judgment passed by Coordinate Bench of this Court in Amarnath Agrawal (Supra), the instant petition is maintainable. During pendency of this petition just to frustrate the petitioners, FIR has been lodged against them. It is grievance of respondent No. 2 that after lodging of the FIR the petition would not be maintainable, the said ground is also not sustainable. The relief clause of the petitioners shows that the petitioners are seeking quashment of the order dated 02.03.2021 and all the subsequent proceeding because the FIR is the consequence of the order passed under Section 156 (3) of the Cr.P.C. Hence, it is prayed that the instant petition may kindly be allowed and relief may also be granted in favour of the petitioners by quashing the order dated 02.03.2021 and subsequent proceedings may also be quashed.

21. I have heard learned counsel for the parties and perused the documents with utmost satisfaction.

22. On the above factual matrix of the case, the points required to be determined by this Court are (1) whether the Magistrate having fixed the matter for recording the evidence of complainant's witnesses will amount to taking of cognizance the complaint by the Magistrate.

(2) Whether the Magistrate having fixed the matter for recording the evidence of complainant's witnesses to examine as to whether process needs to be issued to other party or not can he later on, invoke powers under Section 156 (3) of Cr.P.C. and chooses different nature of enquiry/ investigation?

23. To determine the points raised in this petition, it is necessary for this Court to extract the relevant provisions of the Cr.P.C.

"Section 156. Police officer's power to investigate cognizable case.-(1) Any officer in

charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above-

mentioned.

Section 190. Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try.

Section 200. Examination of complainant- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under

section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them".

24. Chapter XII of the Code of Criminal Procedure deals with information to the Police and their powers to investigate and Section 156 of Cr.P.C. provides police power to investigate cognizable cases. Chapter XIII deals with jurisdiction of the criminal courts in inquiry and trial. Chapter XIV deals with condition required for initiation of proceedings. Chapter XV deals with complaint to Magistrate and Section 200 of Cr.P.C., deals with examination of complaint and Section 202 of Cr.P.C., deals with postponement of issue of process, Section 203 of Cr.P.C. deals with dismissal of the complaint. Chapter XVI deals with commencement of proceedings before Magistrate.

25. From the above provisions of Cr.P.C., it can be seen that on a complaint being filed before the Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. Thus, the procedure which has been prescribed in Chapter XII of Cr.P.C., is at pre-cognizance stage i.e., to say before taking cognizance under Section 190, 200 and 204 of Cr.P.C., if a Magistrate decides to take cognizance under the provisions of Chapter XIV, he is not entitled to order any investigation under Section 156(3) but in the case in hand the complaint has not been registered and the Judicial Magistrate has not applied his mind before application of mind and before adopting the procedure prescribed under Chapter XVI in a pre-cognizance stage Magistrate can very well issue direction. When, the Magistrate applies his mind not for such purpose but for purposes of ordering investigation under Section 156(3) or issue a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. Section 156(3)

appears in Chapter XII which deals with information to the Police and the powers of the Police to investigate a crime. This Section is placed in a chapter different from Chapter XIV which deals with initiation of proceedings against an accused person. It is, therefore, clear that Section Sections 190 and 156(3) of Cr.P.C., are mutually exclusive and work in totally different spheres. In other words, the position is that even if a Magistrate receives a complaint under Section 190 of Cr.P.C., he can act under Section 156(3) and he does not take cognizance. Therefore, the Magistrate's power under Section 156(3) of the Code to order for investigation by the Police have not been touched or attached by Section 202 because these powers are exercised even before cognizance is taken. In other words, Section 202 of Cr.P.C., would apply only to cases where the Magistrate has taken cognizance and chooses to inquire into the complaint either himself or through any other agency. But, in the present case, Magistrate has not taken any cognizance on the complaint only fixed the case for complainant witnesses. Hon'ble the Supreme Court has examined scope of Section 156 (3) of Cr.P.C. and categorically held that the proceedings initiated by the Magistrate under Section 156 (3) of the Cr.P.C. is before taking cognizance of the complaint stage whereas cognizance of the complaint is taken as per Chapter XVI of the Cr.P.C. which is subsequent stage.

26. Hon'ble Supreme Court in Gopal Das vs. State of Assam9, has held in para 7 which reads as under:

"7. When the complaint was received by Mr. Thomas on August 3, 1957, his order which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under Section 156(3) of the Code to the Officer Incharge of Police Station Gauhati for investigation. Section 156(3) states "Any Magistrate empowered under Section 190 may order such investigation as above-mentioned." Mr. Thomas was certainly a Magistrate empowered to take cognizance under

1961 SC 986

Section 190 and he was empowered to take cognizance of an offence upon receiving a complaint He, however, decided not to take cognizance but to send the complaint to the police for investigation as Sections 147, 342 and 448 were cognizable offences. It was,. however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Code. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him, because Section 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the com-plaint filed before him, he was not obliged 'to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in Section 190 to mean 'must.' The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner [provided by Chapter XVI of the Code, Numerous cases were cited before us in support of the submissions made on behalf of the appellants.

Certain submissions were also made as to what is meant by "taking cognizance." It is unnecessary to refer to the cases cited. The following observations of Mr. Justice Das Gupta in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any

magistrate has taken cognizance of any offence under Section 190(1)(a) Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter - proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.

were approved by this Court in R.R. Chari v. State of Uttar Pradesh. It would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI but for taking action of some other kind, e.g., ordering investigation under Section 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. The observations of Mr. Justice Das Gupta above referred to were also approved by this Court in the case of Narayandas Bhagwandas Madhavdas v. State of West Bengal, 1960-1 Section . It will be clear, therefore, that in the present case neither the Additional District Magistrate nor Mr. Thomas applied his mind to the complaint filed on August 3, 1957, with a view to taking cognizance of an offence. The Additional District Magistrate passed on the complaint to Mr. Thomas to deal with it. Mr. Thomas seeing that cognizable offences were mentioned in the complaint did not apply his mind to it with a view to taking cognizance of any offence; on the contrary in his opinion it was a matter to be investigated by the police under Section 156(3) of the Code. The action of Mr. Thomas conies within the observations of Mr. Justice Das Gupta. In thes circumstances, we do not think that the first contention on behalf of the appellants has any substance".

27. Hon'ble the Supreme Court in Tula Ram and others Vs. Kishore Singh10, has held in para10, 13 and 14 which read as under:-

(1977) 4 SCC 459

"10. Analysing the scheme of the Code on the subject in question it would appear that section 156(3) which runs thus:

Any Magistrate empowered under section 190 may order such an investigation as above mentioned.

appears in Chapter 12 which deals with information to the Police and the powers of the police to investigated a crime. This section, is therefore placed in a Chapter different from Chapter 14 which deals with initiation of proceedings against an accused person. It is, therefore, clear that sections 190 and 156(3) are mutually exclusive and work in totally different spheres. In other words, the position is that even if a Magistrate receives a complaint under section 190 he can act under section 156(3) provided that he does not take cognizance. The position, therefore, is that while Chapter 14 deals with post cognizance stage Chapter 12 so far as the Magistrate is concerned deals with pre- cognizance stage, that is to say once a Magistrate starts acting under section 190 and the provisions following he cannot resort to section 156(3). Mr. Mukherjee vehemently contended before us that in view of this essential distinction once the Magistrate chooses to act under section 156(3) of the Code it was not open to him to revive the complaint, take cognizance and issue process against the accused. Counsel argued that the Magistrate in such a case has two alternatives and two alternatives only either he could direct reinvestigation if he was not satisfied with the final report of the police or he could straightaway issue process to the accused under section 204. In the instant case the Magistrate has done neither but has chosen to proceed under section 190 (1 ) (a) and section 200 of the Code and thereafter issued process against the accused under section 204. Attractive though the argument appears to be we are however unable to accept the same. In the first place, the argument is based on a fallacy that when a Magistrate orders investigation under section 156(3) the complaint disappears and goes out of existence. The provisions of section 202 of the present Code debar a Magistrate from directing investigation on a complaint where the offence charged is triable exclusively by the Court of Sessions. On the allegations of the complainant the offence complained of was clearly triable exclusively by the Court of Sessions (2) and therefore it is obvious that the Magistrate was

completely debarred from directing the complaint filed before him to be investigated by the police under section 156 (3) of the Code to order investigation by the police have not been touched or affected by section 202 because these powers are exercised even before cognizance is taken. In other words, section 202 would apply only to cases where the Magistrate has taken cognizance and chooses to enquire into the complaint either himself or through any other agency. But there may be circumstances as in the present case where the Magistrate before taking cognizance of the case himself chooses to order a pure :and simple investigation under section 156(3) of the Code. The ,question is, having done so is lie debarred from proceeding with the complaint according to the provisions of sections 190, 200 and 204 ,of the Code after receipt of the final report by the police? We see :absolutely no bar to such a course being adopted by the Magistrate. In the instant case, there is nothing to show that the Magistrate had taken cognizance, of the complaint. Even though the complaint was filed by the Magistrate, he. did not pass any order indicating that he bad applied his judicial mind to the facts of the case for the purpose of proceeding with the complaint. What he had done was to keep the complaint aside and order investigation even before deciding to take cognizance on the basis of the complaint. After the final report was received the Magistrate decided to take cognizance of the case on the basis of the complaint and accordingly issued notice to the 'Complainant. Thus, it was on 2nd April, 1975 that the Magistrate decided for the first time to take cognizance of the complaint and ,directed the complainant to appear. Once cognizance was taken by the Magistrate under section 190 of the Code it was open to him lo choose any of the following alternatives :

(1) Postpone the issue of process and enquire into the case himself; or (2) direct an investigation to be made by the Police Officer; or (3) any other person.

In the instant case as the allegations made against the accused made ,out a case exclusively triable by the Court of Sessions the Magistrate was clearly debarred from ordering any investigation, but he was not ,debarred from making any enquiry himself into the truth of the complaint. This is what exactly the Magistrate purported to have done in

the instant case. The Magistrate issued notice to the complainant to appear before him, recorded the statement of the complainant and his witnesses and after perusing the same he acted under section 204 ,of the Code by issuing process to the accused appellants as he was satisfied that there were sufficient grounds for proceeding against the accused.

13. To the same effect is the decision of this Court in Jamuna Singh & Ors.v. Bhadai Sah (1964) 5 SCR 37.

It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offence mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under section 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence."

14. In these circumstances the inescapable conclusion is that in the present case the Magistrate had not taken cognizance of the case and ordered investigation by the police under section 156(3) before applying his mind to the complaint. This being the position it was always open to the Magistrate to take cognizance of the complaint and dispose it of according to law, that is to say according to the provisions of sections 190, 200 and 202. In view of the facts in the present case he was prohibited from directing any investigation but he could take other steps. Even in the case of Abhinandan Jha & Ors. v. Dinesh Mishra (supra) this Court while holding that the Magistrate has supervisory power over the police and it was not open to him direct the police to file a charge-sheet observes that the Court was not powerless to dispose of the complaint according to law. In this connection, this Court observed as follows :

We are not inclined to agree with the further view that from these considerations alone it can be said that when the police submit a report that no case has been made out for, sending up an accused for trial, it is open to the Magistrate to direct the police to file a charge-sheet. But, we may make it clear that this is not to say that the Magistrate is absolutely powerless, because, as will

be indicated later, it is open to him to take cognizance of an offence and proceed, according to law."

28. Again, Hon'ble Supreme Court in H.S. Bains, Director, Small Saving-cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh)11 has held in paras 6 and 8 which read as under:

"6. It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Sec. 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Sec. 203. If in his opinion there is sufficient ground for proceeding he may issue process under Sec. 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Sec.

156(3). The police will then investigate and submit a report under Sec. 173(1). On receiving the police report the Magistrate may take cognizance of the offence under Sec. 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The Police report under Sec. 173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him

(1980) 4 SCC 631

and proceed to record the statements upon oath of the complainant and the witnesses present under Sec. 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Sec. 156(3) and received a report under Sec. 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Sec. 156(3) and receives a police report under Sec. 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Sec. 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report: (3) he may take cognizance of the offence under Sec. 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Sec. 200 If he adopts the third alternative, he may hold or direct an inquiry under Sec. 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.

8. In Tula Ram vs. Kishore Singh (supra) the Magistrate, on receiving a complaint, ordered an investigation under Sec. 156(3). The Police submitted a report indicating that no case had been made out against the accused. The Court, however, recorded the statements of the complainant and the witnesses and issued process against the accused. It was contended that the Magistrate acted without jurisdiction in taking cognizance of the case as if upon a complaint when the police had submitted a report that no case had been made out against the accused. This Court held that the Magistrate acted within his powers and observed that the complaint did not get exhausted as soon as the Magistrate ordered an investigation under Sec. 156(3). We are, therefore unable to agree with the submission of Shri Sibal that the Magistrate acted without jurisdiction in taking cognizance of the offence and issuing process to the accused notwithstanding the fact that the police report was to the effect that no case had been made out".

29. It is now well settled that if a complaint is being filed before the Magistrate, he applies his mind for proceeding under various provisions of Chapter 16 of the Code of Criminal Procedure, then only it must be held to have taken cognizance of the offences mentioned in the complaint. When however, the Magistrate applies his mind not for such purpose but for purposes of ordering investigation under Section 156(3) or issue a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. From bare perusal of the order-sheets, it is crystal clear that neither summons have not been issued to the accused by the learned Judicial Magistrate First Class nor the complaint has been dismissed, as such, it cannot be held that the cognizance has been taken by the learned Judicial Magistrate First Class.

30. The word "cognizance" has not been defined under the Cr.P.C.

To unveil the legal quandary, a brief survey of 'Cognizance' would illuminate everything, clearing all concepts, therefore, this Court is referring to various legal dictionaries and judgment of Hon'ble the Supreme Court to examine the word cognizance.

31. New Lexicon Webster's Dictionary, (1988) New York, defines the word cognizance as, "The range of mental observation or awareness, the fact of being aware, knowledge, (Law) the powers given to a Court to deal with a given matter, jurisdiction."

32. Shorter Oxford English Dictionary, Sixth Edition, defines word 'Cognizance' rooting from Old French "conis(s)aunce, as "Knowledge, understanding, acquaintance, awareness," and in the context of LAW as, "Acknowledgement, esp. of a fine; admission of an alleged fact."

33. Wharton's Law Lexicon (14th Edition), defines Cognizance as follows, Cognizance (Judicial), knowledge upon which a judge is bound to act without having it proved in evidence: as the public statutes of the realm, the ancient history of the realm, the order

and course of proceedings in Parliament, the privileges of the House of Commons, the existence of war with a foreign State, the several seals of the King, the Supreme Court and its jurisdiction, and many other things. A Judge is not bound to take cognizance of current events, however notorious, nor of the law of other countries.

34. The meaning of Cognizance given in Black's Law Dictionary, 9 th Edition, reads as under:- Cognizance:- (1) Court's right to determine cases jurisdiction, (2) the taking of jurisdiction authoritative notices. (3) acknowledgement or admission of the alleged facts, Acknowledgement of a fine.

35. Hon'ble the Supreme Court in Jamuna Singh Vs. Bhadai Shah12, Supreme Court has held as under:-

"6. The Code does not contain any definition of the words "institution of a case". It is clear however and indeed not disputed that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. Section 190(1) of the Code of Criminal Procedure contains the provision for cognizance of offences by Magistrates. It provides for three ways in which such cognizance can be taken. The first is on receiving a complaint of facts which constitute such offence; the second is on a report in writing of such facts - that is, facts constituting the offence - made by any police officer; the third is upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion that such offence has been committed. Section 193 provides for cognizance of offences being taken by Courts of Sessions on commitment to it by a Magistrate duly empowered in that behalf. Section 194 provides for cognizance being taken by High Court of offences upon a commitment made to it in the manner provided in the Code.

7. An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence a case is instituted in the Magistrate's Court and such a case is one instituted on a complaint. Again, when a Magistrate

AIR 1964 SC 1541

takes cognizance of any offence upon a report in writing of such facts made by any police officer it is a case instituted in the Magistrate's Court on a police report.

9. In the case before us the Magistrate after receipt of .

Bhadai Shah's complaint proceeded to examine him under Section 200 of the Code of Criminal Procedure. That section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under Section 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by Section 200 the Magistrate could have issued process at once under Section 204 of the Code of Criminal Procedure or could have dismissed the complaint under Section 203 of the Code of Criminal Procedure. It was also open to him, before taking either of these courses, to take action under Section 202 of the Code of Criminal Procedure. That section empowers the Magistrate to "postpone the issue of process for compelling the attendance of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint". If and when such investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into consideration before the Magistrate takes any action under Section 203 of the Code of Criminal Procedure.

36. In Darshan Singh Ram Kishan Vs. State of Maharashtra13, three member Bench of Hon'ble the Supreme Court has held as under:-

"....As has often been held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of

(1972) 1 SCR 571

an offence. Cognizance therefore, takes place at a point when a magistrate first takes judicial notice of an offence.

37. In Nirmaljit Singh Hoon Vs. State of W.B14, Hon'ble the Supreme Court has held as under:-

"22. Under Section 190 of the Code of Criminal Procedure, a magistrate can take cognizance of an offence, either on receiving a complaint or on a police report or on information otherwise received. Where a complaint is presented before him, he can under Section 200 take cognizance of the offence made out therein and has then to examine the complainant and his witnesses. The object of such examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. Such examination is provided, therefore, to find out whether there is or not sufficient ground for proceeding."

38. In Devarapalli Lakshminarayana Reddy v. Narayana Reddy, a three Judges Bench of Hon'ble the Supreme Court held as under:-

"14. This raises the incidental question: What is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein.

The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190 (1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have

(1973) 3 SCC 753

taken cognizance of the offence within the meaning of Section 190(1) (a). If, instead of proceeding under Chapter XV, he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156 (3), he cannot be said to have taken cognizance of any offence."

39. In Kishun Singh & others Vs. State of Bihar15, Hon'ble the Supreme Court has held as under:-

"7. ...Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding under Sections 200/204 of the Code."

40. In State of W.B. Vs. Mohammed Khalid 16, Hon'ble the Supreme Court has held as under:-

"43. ...The word "cognizance" indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons."

41. In Narsingh Das Tapadia v. Goverdhan Das Partani 17, Hon'ble the Supreme Court, held as under:-

"8. Taking cognizance of an offence" by the court has to be distinguished from the filing of the complaint by the complainant. Taking cognizance would mean the action taken by the court for initiating judicial proceedings against the offender in respect of the offence regarding which the

(1993) 2 SCC 16

(1995) 1 SCC 684

(2000) 7 SCC 183

complaint is filed. Before it can be said that any Magistrate or Court has taken cognizance of an offence it must be shown, that he has applied his mind to the facts for the purpose of proceeding further in the matter at the instance of the complainant. If the Magistrate or the Court is shown to have applied the mind not for the purpose of taking action upon the complaint but for taking some other kind of action contemplated under the Code of Criminal Procedure such as ordering investigation under Section 156(3) or issuing a search warrant, he cannot be said to have taken cognizance of the offence (Narayandas Bhagwandas Madhavdas v. State of West Bengal, AIR 1959 Supreme Court 1118; and Gopal Das Sindhi and others v. State of Assam and another, AIR 1961 Supreme Court 986)."

42. In Bhagat Ram Vs. Surinder Kumar18, Hon'ble the Supreme Court, has held that as to when cognizance of an offence is taken will depend upon facts and circumstances of each case and it is not possible to state the same with precision. Obviously, it is only when the Magistrate applies his mind for purpose of proceeding under Section 200 Criminal Procedure Code and subsequent Sections that it can positively be stated that he has taken cognizance. To derive this inference we rely upon the decision in Narayandas Bhagwandas Madhavdas v. The State of West Bengal-AIR 1959 SC 1118 and Devarapalli Lakshminarayana Reddy and Ors. v. V.Narayana Reddy and Ors.-AIR 1976 SC 1672.

43. In S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd.19, Hon'ble the Supreme Court holds as under:-

"14. ...This raises the incidental question : What is meant by "taking cognizance of an offence" by a Magistrate within the contemplation of Section 190?. This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court

(2004) 11 SCC 622

(2008) 2 SCC 492

takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence". [see also M.L. Sethi v. R.P. Kapur & Anr., (1967) 1 SCR 520]."

44. In Bhushan Kumar Vs. State (NCT of Delhi) 20, Supreme Court holds as under:-

"11. ...Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance."

45. In Sarah Mathew Vs. Institute of Cardio Vascular Diseases by its Director21, a Constitutional bench of Supreme Court holds as under:-

"31. It is now necessary to see what the words `taking cognizance' mean. Cognizance is an act of the court. The term `cognizance' has not been defined in the Cr.P.C. To understand what this term means we will have to have a look at certain provisions of the Cr.P.C. Chapter XIV of the Code deals with `Conditions requisite for initiation of proceedings'. Section 190 thereof empowers a Magistrate to take cognizance upon (a) receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed."

(2012) 5 SCC 424

(2014) 2 SCC 62

46. From the above stated legal proposition, it is clear that taking cognizance of an offence by the Court is different from filing of the complaint by the complainant. Taking cognizance would mean the action has been taken by the Court for initiating judicial proceedings against the offender in respect of the offence regarding which the complaint is filed.

47. Cognizance is the awareness of a Judge about the commission of some offence. A Court, having jurisdiction, takes cognizance of an offence, when it neither dismisses the complaint nor refers it for further investigation, and instead notices that the allegations in the complaint, prima facie point towards commission of an offence, and on such awareness, Magistrate consciously proceeds further, leading to issuance of process and summoning the accused. The mysticism behind the charm of the word Cognizance is that it is a sine qua non to set the criminal justice system in motion.

48. Cognizance is a Magistrate peeping through a keyhole and examining whether an offence has been committed or not; and if yes, then whether Magistrate has jurisdiction to proceed further. A Magistrate, having jurisdiction, before he/she takes cognizance of an offence, he/she conducts thorough frisking of the complaint at the check post of judicial scrutiny, exploring existence of a prima facie case, and only when the complaint passes the test of Magistrate's satisfaction, he/she issues process, ensuring the elimination of frivolous prosecutions at the very initial stage, saving people from the trauma of a long and tiring criminal trial. A perusal of the order-sheet reveals that the Judicial Magistrate First Class had neither issued summons to the accused not examined the witness. As such, the contention raised by learned counsel for the petitioner that the learned Judicial Magistrate First Class taking cognizance of the complaint, cannot revert back and follow the procedure as defined under Section 156 (3) of the Cr.P.C.

49. Thus, it is clear that merely complaint was filed and the learned Judicial Magistrate First Class has not applied his mind as the statement of the complainant witnesses has not been recorded, therefore, the learned Judicial Magistrate First Class has rightly allowed the application filed by the complainant under Section 156 (3) of the Cr.P.C. directing Police Station- Civil Lines, Bilaspur for registration of FIR against the petitioners, who in turn investigated the matter, registered the FIR against the petitioners and submit final report, therefore, it cannot be said there is any illegality or irregularity in the order passed by learned Judicial Magistrate First Class.

50. The judgment cited by learned counsel for the petitioners in Indresh Sharma (Supra), is not applicable to the present facts and circumstances of the case as in this case the facts are different. As per paragraph 6 of the judgment, this Court has recorded that the order sheets of the trial Court would reveal that initially the Magistrate did not examine the complainant on the date when the complaint was filed and instead it postponed the issue of process and sought a report from the police. Pending submission of report by the concerned police, the matter was fixed for examination of complainant, however, in the meanwhile the complainant also moved an application under Section 156 (3). The order sheets further reveal that the concerned police submitted the report, but the Magistrate did not consider the report and again fixed the matter for recording of the evidence of the complainant witnesses, but later on proceeded to deal with the application under Section 156 (3) of the Cr.P.C. As in the instant case, the complainant witnesses have not been examined and in the meanwhile, the complainant moved an application under Section 156 (3) of the Cr.P.C., which has been allowed, therefore, by following the proper procedure of law for registration of FIR, cannot be said to be illegal process in view of the various judgments as mentioned in foregoing paragraphs. Even from bare perusal of the police

report dated 06.01.2020 prima facie supports the contention of respondent No. 2, as such the case laws cited by learned counsel for the petitioner passed by Coordinate Bench of this Court are not applicable in the present facts and circumstances of the case.

51. From the above discussion and considering the law laid down by Hon'ble the Supreme and by holding that merely filing of complaint does not amount to cognizance of the complaint unless the Judicial Magistrate First Class applies his mind, therefore, the learned Judicial Magistrate First Class, Bilaspur has not committed any illegality or irregularity in directing for registration of FIR against the petitioners, which warrants any interference by this Court at this stage.

52. In view of the above, the instant petition is liable to be and is hereby dismissed.

53. The interim order passed by this Court on 17.05.2021 stands vacated. The police authorities are directed to investigate the matter and submit the final report to the concerned Court.

Sd/-

(Narendra Kumar Vyas) Judge

Arun